Citation Nr: 0005667
Decision Date: 03/02/00 Archive Date: 03/14/00
DOCKET NO. 94-27 581 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to service connection for the residuals of a
compression fracture of the thoracic spine.
2. Entitlement to service connection for a lung disability.
3. Entitlement to service connection for a left knee
disability.
4. Entitlement to service connection for a left hip
disability.
5. Entitlement to service connection for the residuals of a
left ankle stab wound.
6. Entitlement to service connection for chronic ear aches.
7. Entitlement to service connection for the residuals of a
sprain of the left hand index finger.
8. Entitlement to service connection for a right hand
disability.
9. Entitlement to service connection for the residuals of an
insect bite.
10. Entitlement to an increased rating for degenerative disc
disease of the lumbosacral spine, currently evaluated as 20
percent disabling.
11. Entitlement to an increased (compensable) rating for a
chronic fungus infection of both feet.
12. Entitlement to an increased (compensable) rating for
degenerative arthritis of the right knee.
13. Entitlement to an increased (compensable) rating for
arterial hypertension.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael E. Kilcoyne, Counsel
INTRODUCTION
The veteran retired from active military service in July
1993, after serving more than 21 years.
A perfected appeal to the Board of Veterans' Appeals (Board)
of a particular decision entered by a Department of Veterans
Affairs (VA) regional office (RO) consists of a notice of
disagreement in writing received within one year of the
decision being appealed and, after a statement of the case
has been furnished, a substantive appeal received within 60
days of the issuance of the statement of the case or within
the remainder of the one-year period following notification
of the decision being appealed. The present case arises from
a March 1994 rating action, with which the veteran expressed
disagreement in April 1994. A statement of the case was
issued in May 1994, and the appeal was perfected by the
submission of a VA Form 9 (Appeal to Board of Veterans'
Appeals), which was received at the RO in July 1994.
In December 1998, the veteran appeared at a Travel Board
hearing conducted by the undersigned Member of the Board, at
the RO in St. Petersburg, FL. Unfortunately, the tape on
which that hearing was recorded was damaged, and it was not
possible to obtain a transcript of it. In view of that, the
veteran was advised of this fact in a letter addressed to him
in March 1999, and was asked to inform the Board whether he
desired to appear at another Travel Board hearing, or whether
he wished to forego a second hearing and have the Board
consider his case on the current record.
The veteran was also informed that, if he did not respond to
the above letter within 30 days, it would be assumed he
wished to attend another hearing before a Member of the Board
at the RO, and that arrangements would be made to accomplish
that in due course. Since no response was received from the
veteran, his claim was remanded to the St. Petersburg RO,
from which the appeal had originated, in order to have the
veteran scheduled for another hearing. In June 1999, the
veteran advised the St. Petersburg RO that he had moved to
Indiana, and requested that his hearing be moved to
Indianapolis, IN. Shortly thereafter, the veteran's claims
file was transferred to the RO in Indianapolis, and, in a
letter to the veteran from that RO dated in July 1999, the
veteran was advised that a Board Member had previously
visited that RO to conduct hearings in March 1999, and that
no further hearings were scheduled at that location for the
remainder of 1999. The veteran was also advised that the
proposed schedule for hearings by Board Members at that RO,
for the year 2000, had not yet been published. Accordingly,
the veteran was informed that if he decided he still wanted
to have a hearing before a Board Member, his claims might be
subject to considerable delay.
The veteran was asked whether he still desired to appear at a
hearing before a Member of the Board at the RO, or whether he
would prefer other hearing options. These options included
attending a hearing before a hearing officer at the RO,
attending a hearing before a Board Member in Washington, DC,
attending a hearing at the Louisville, KY, RO with a Board
Member via teleconference, or attending a hearing at the
Chicago, IL, RO with a Board Member via teleconference. In
August 1999, the veteran advised that he desired to appear at
a hearing before a hearing officer at the local VARO.
Pursuant to the veteran's instructions, he was scheduled to
appear at a hearing at the RO in November 1999. The record
reflects, however, that he did not appear for that hearing,
and, the following day, the RO advised the veteran that his
claims file was being forwarded to the Board in Washington,
DC, for appellate review. To date, the record does not
reflect that the veteran has offered any explanation for his
failure to report for the November 1999 hearing, or that he
desires to have any further hearings scheduled. Accordingly,
the Board will proceed to address the veteran's claims based
upon the current record.
FINDINGS OF FACT
1. The veteran's assertion that he has disabilities
affecting the thoracic spine, the lungs, the left ankle, the
left index finger, and the right hand, which are related to
service, is not supported by medical evidence that would
render the claims for service connection for those
disabilities plausible under the law.
2. The veteran's assertion that he has disabilities that are
the residuals of insect bites or manifested by ear aches,
which are related to service, is not supported by medical
evidence that would render the claims for service connection
for those disabilities plausible under the law.
3. The veteran had a permanent duty profile limiting his
activity during the last three years of his military service,
due, in part, to left knee and left hip complaints.
4. Post-service records dated within a year of the veteran's
retirement from service include diagnoses of left knee
chondromalacia and left knee arthritis, together with
complaints of left hip discomfort.
5. The veteran's chronic, bilateral fungus foot infection is
on a nonexposed surface or small area and is not shown to be
productive of more than slight, if any, exfoliation,
exudation, or itching.
6. The veteran's arterial hypertension is not shown to be
productive of a history of diastolic pressure predominantly
100 or more, or a systolic pressure of predominantly 160 or
more.
CONCLUSIONS OF LAW
1. The veteran has not submitted a well-grounded claim for
service connection for the residuals of a compression
fracture of the thoracic spine. 38 U.S.C.A. § 5107 (West
1991).
2. The veteran has not submitted a well-grounded claim for
service connection for a lung disability. 38 U.S.C.A. § 5107
(West 1991).
3. The veteran has not submitted a well-grounded claim for
service connection for the residuals of a left ankle stab
wound. 38 U.S.C.A. § 5107 (West 1991).
4. The veteran has not submitted a well-grounded claim for
service connection for chronic ear aches. 38 U.S.C.A. § 5107
(West 1991).
5. The veteran has not submitted a well-grounded claim for
service connection for the residuals of a sprain of the left
hand index finger. 38 U.S.C.A. § 5107 (West 1991).
6. The veteran has not submitted a well-grounded claim for
service connection for a right hand disability. 38 U.S.C.A.
§ 5107 (West 1991).
7. The veteran has not submitted a well-grounded claim for
service connection for the residuals of an insect bite. 38
U.S.C.A. § 5107 (West 1991).
8. The veteran has submitted a well-grounded claim for
service connection for a left knee disability. 38 U.S.C.A.
§ 5107(a) (West 1991).
9. The veteran has submitted a well-grounded claim for
service connection for a left hip disability. 38 U.S.C.A.
§ 5107(a) (West 1991).
10. The criteria for a compensable evaluation for a chronic
fungus infection of both feet are not met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2. 4.7, 4.31,
Diagnostic Code 7806 (1999).
11. The criteria for a compensable evaluation for arterial
hypertension are not met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 4.1, 4.2. 4.7, 4.31, Diagnostic Code
7101 (as in effect prior to and since January 1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
The threshold question to be answered regarding these claims
is whether they are well grounded. 38 U.S.C.A. § 5107 (West
1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). If they
are not, they must fail and there is no further duty to
assist in their development. 38 U.S.C.A. § 5107; Murphy v.
Derwinski, 1 Vet.App. 78 (1990). This requirement has been
reaffirmed by the United States Court of Appeals for the
Federal Circuit, in its decision in Epps v. Gober, 126 F.3d
1464, 1469 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348
(1998). That decision upheld the earlier decision of the
United States Court of Appeals for Veterans Claims (formerly
known as the United States Court of Veterans Appeals) which
made clear that it would be error for the Board to proceed to
the merits of a claim which is not well grounded. Epps v.
Brown, 9 Vet.App. 341 (1996). See Morton v. West, 12
Vet.App. 477, 480 (1999) (noting that the Federal Circuit, in
Epps v. Gober, supra, "rejected the appellant's argument
that the Secretary's duty to assist is not conditional upon
the submission of a well-grounded claim").
The Court of Appeals for Veterans Claims has also held that,
in order to establish that a claim for service connection is
well-grounded, there must be competent evidence of: (1) a
current disability (a medical diagnosis); (2) the incurrence
or aggravation of a disease or injury in service (lay or
medical evidence); and (3) a nexus (that is, a link or a
connection) between the in-service injury or aggravation and
the current disability. Competent medical evidence is
required to satisfy this third prong. Caluza v. Brown, 7
Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table). See Elkins v. West, 12 Vet.App. 209 (1999)
(en banc). "Although the claim need not be conclusive, the
statute [38 U.S.C.A. § 5107] provides that [the claim] must
be accompanied by evidence" in order to be considered well
grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
In a claim of service connection, this generally means that
evidence must be presented which in some fashion links the
current disability to a period of military service or to an
already service-connected disability. 38 U.S.C.A. § 1110
(West 1991); 38 C.F.R. § 3.303 (1996); Rabideau v. Derwinski,
2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App.
343 (1993).
Evidence submitted in support of the claim is presumed to be
true for purposes of determining whether it is well grounded.
King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of
medical diagnosis or causation, however, do not constitute
competent evidence sufficient to render a claim well
grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992);
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992).
Under applicable criteria, service connection may be granted
for disability resulting from disease or injury which was
incurred in or aggravated by service. 38 U.S.C.A. §§ 1110,
1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service
connection for arthritis may be presumed if it became
manifest to a degree of 10 percent disabling during the
veteran's first year after separation from service.
38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (1999).
A. Thoracic Spine, Left Ankle, Chronic Ear Aches,
Left Index Finger, Right Hand, Insect Bite
A review of the veteran's service medical records reflects
that, in 1977, he was treated for back pain, and a muscle
spasm was noted at the area of T-10 to L-1 (from the tenth
thoracic vertebra to the first lumbar vertabra). Thereafter,
however, there are no records relating to the thoracic spine
until January 1987, when X-rays of the back were taken in
connection with complaints of low back pain. In pertinent
part, those X-rays revealed "minimal wedging of T-11 and T-
12," as well as minimal reduction in height of the posterior
aspect of the T-11 disc space. In connection with low back
complaints in 1993, additional X-rays were taken in February
of that year. They revealed, in pertinent part, that the T-
12 vertebra appeared somewhat wedged anteriorly, which was
considered to be consistent with an old minimal compression
fracture. Subsequently, no specific findings regarding the
veteran's thoracic spine were recorded in the report of the
examination conducted in connection with his retirement from
active service in June 1993.
In September 1993, the veteran was examined for VA purposes.
The report from this examination did not include any findings
regarding a disability of the thoracic spine. Similarly,
when he was again examined by VA in February 1994, the report
from that examination revealed no findings regarding a
disability of the thoracic spine, and none of the post-
service outpatient treatment records obtained in connection
with the veteran's claim (dated in 1993 and 1994) has
revealed the presence of any thoracic spine disability.
As to the veteran's claim concerning the residuals of insect
bites, his service medical records reflect that, in 1983, he
was seen by medical personnel after having been bitten by a
"bug." At that time, he was evidently provided medication,
and referred for a consultation with a dermatologist.
Subsequently dated records, however, do not reflect any
follow-up in that regard.
Ten years later, in January 1993, the veteran was seen again
by medical personnel following his report of having an insect
bite on his right lower extremity. The presence of
cellulitis was noted about the site; on the next day, it was
described as resolving. Thereafter, no further pertinent
findings were recorded in the service medical records, and,
when he was examined for VA purposes in September 1993 and
February 1994, there were no findings entered into the record
regarding any residuals of insect bites. Similarly, the
post-service outpatient treatment records associated with the
file do not reflect any complaints or diagnoses related to
insect bites.
With respect to the veteran's claim for service connection
for a left index finger disability, a review of his service
medical records reflects that, in 1987, he received treatment
to his left index finger after striking it with a hammer. X-
rays, however, revealed no evidence of a fracture or
dislocation, and the diagnostic assessment was of a first-
digit contusion. Following service, none of the outpatient
treatment records, dated in 1993 and 1994, reflects the
presence of any left index finger impairment, and there was
no left finger disability noted when the veteran was examined
for VA purposes in September 1993 and February 1994.
As to the veteran's claim regarding a left ankle impairment,
service medical records, dated in 1989, reflect that he was
treated for a left ankle sprain. There was no indication,
however, of any stab wound to that joint. Similarly, when he
was examined for VA purposes in 1993 and 1994, there were no
findings regarding the residuals of any left ankle stab
wound. Moreover, there were no findings or complaints
regarding the residuals of a left ankle stab wound noted in
the post-service outpatient treatment records associated with
the claims file.
With respect to a right hand disability, the service medical
records reflect that, in July 1990, the veteran was seen for
right hand pain at the fourth digit, which occurred after he
removed a splinter from that location. Examination revealed
that the veteran had a swollen knuckle, and, on the following
day, medical personnel removed an additional foreign body
from that area. Subsequently dated service medical records
show no further pertinent complaints, and none were noted
upon VA examinations in September 1993 and February 1994.
Post service outpatient treatment records, dated in 1993 and
1994, also fail to show the presence of any disability of the
right hand.
Regarding the veteran's claim for service connection for
chronic ear aches, a review of his service medical records
fails to show any records in which he was diagnosed to have a
disability manifested by chronic ear aches. Similarly, no
such disability was diagnosed when the veteran was examined
following service in 1993 or 1994, or in any post-service
outpatient treatment records.
Under the circumstances described above, the Board must
respectfully conclude that the veteran has failed to satisfy
the threshold requirement for submitting well-grounded claims
for service connection for the residuals of a compression
fracture of the thoracic spine, the residuals of a left ankle
stab wound, chronic ear aches, the residuals of a sprain of
the left hand index finger, a right hand disability, and/or
the residuals of an insect bite, as set out in the judicial
precedent in Caluza, supra, and as imposed by 38 U.S.C.A.
§ 5107(a), because he has failed to present any medical
evidence reflecting the current presence of any of these
claimed disabilities. In view of this, there is no duty to
assist the veteran further in the development of the claims,
and the Board does not have jurisdiction to adjudicate them.
Boeck v. Brown, 6 Vet.App. 14 (1993), Grivois v. Brown,
6 Vet.App. 136 (1994).
As claims that are not well grounded do not present a
question of fact or law over which the Board has
jurisdiction, the claims for service connection for the
residuals of a compression fracture of the thoracic spine,
the residuals of a left ankle stab wound, chronic ear aches,
the residuals of a sprain of the left hand index finger, a
right hand disability, and the residuals of an insect bite,
must be denied.
B. Lungs
Regarding the veteran's claim for service connection for a
lung disability, a review of his service medical records
discloses that, in X-rays taken in November 1988, he was
considered to have a normal chest. The lungs were reportedly
well inflated and free of acute or active chronic
inflammatory process or tumor. Similarly, additional chest
X-rays taken in May 1993, shortly before the veteran's
retirement, revealed what was described as a normal chest.
The reports of VA examinations, in September 1993 and
February 1994, also fail to show any findings related to
disability of the lungs. Indeed, in the February 1994
examination report, it was specifically noted that there were
no pulmonary symptoms. The only post-service treatment
record reflecting that there may be some lung impairment
present is a March 1994 outpatient treatment record, on which
it was noted that there was an abnormal sound heard emanating
from the veteran's right middle lung. The diagnostic
impression was "rule out" pneumonia. Significantly,
however, there was no indication in that record that the
finding was considered in any way to be related to the
veteran's service. Thus, while it may well be that the
veteran has, as he contends, a blemish on his lung that arose
from pneumonia he had in service, there is no medical
evidence indicating that this causes any impairment.
Since the record is devoid of any diagnosis of a chronic lung
impairment in service, and there is no medical opinion
linking, to service, the abnormal lung sound heard upon
examination after service, it is the Board's view that the
veteran has failed to satisfy the threshold requirement for
submitting a well-grounded claim for service connection for a
lung disability, as required by Caluza, supra, and as imposed
by 38 U.S.C.A. § 5107(a). Under these circumstances, there
is no duty to assist the veteran further in the development
of his claim, and the Board does not have jurisdiction to
adjudicate it. Boeck and Grivois, supra. As claims that are
not well grounded do not present a question of fact or law
over which the Board has jurisdiction, the claim for service
connection for a lung disability must be denied.
C. Left Knee
Regarding the veteran's left knee, his service medical
records reflect that, in 1981, he apparently was seen for
complaints of left sided knee pain. X-rays taken at that
time, however, revealed that there was no significant
abnormality. Records dated in 1986 again show that the
veteran was seen for left knee pain. Examination revealed
that there was no edema or ecchymosis. There was, however,
slight tenderness with palpation to the posterior knee. The
final clinical assessment was left knee pain of questionable
etiology. A report dated in 1988 revealed that the veteran
described experiencing occasional left knee pain, and records
dated in June 1990 reflect that the veteran was given a
permanent duty profile whereby he had permission to limit his
running to a distance not to exceed 2 miles, and to run at
his own pace, in part, because of left knee pain.
Following service, the veteran underwent an examination for
VA purposes in September 1993. The report from this
examination revealed that there was no swelling of the knees,
and that range of motion of the knees was considered normal.
Although X-rays of the left knee were interpreted as normal,
the diagnosis entered on the report was "Chondromalacia,
both knees."
Outpatient treatment records, dated in December 1993, reflect
that the veteran was seen for complaints of left knee pain,
and that he gave a history of pain with locking of the knee.
Examination revealed the presence of swelling, and it was
suspected that the veteran had degenerative joint disease.
Outpatient treatment records dated two days later again show
that the veteran was considered to have degenerative joint
disease of the left knee.
In February 1994, the veteran underwent another VA
examination. In the report thereof, it was noted that the
veteran advised that his left knee began bothering him in the
late 1980's, although there was no specific injury. It was
also recorded that he had arthroscopic surgery on that knee
in January 1994, after he developed severe pain, locking, and
swelling in December 1993. The surgery reportedly included
debridement of the medial and lateral meniscus, and of the
femoral condyles. The veteran also reported that a medial
and lateral meniscus tear was found. At the time of the VA
examination, the knee was still swollen and painful, as well
as productive of a 15-degree loss of flexion. The diagnosis
was "Post op status, post traumatic arthritis, left knee."
Since the evidence in this case shows that the veteran had
sufficient left knee complaints in service to require a
permanent profile limiting his running during his last three
years of service, and because there are post-service records
dated within a year of the veteran's retirement from service
that show a diagnosis of left knee chondromalacia and left
knee arthritis, the Board finds that the veteran's claim for
service connection for a current left knee disability is well
grounded.
D. Left Hip
As to the veteran's claim concerning his left hip, a review
of his service medical records shows that, in December 1987,
he was seen for follow-up in regards to what was described as
bilateral hip degenerative joint disease. This record also
indicates that X-rays had been interpreted as showing
bilateral degenerative joint disease. Unfortunately, the
evidence does not include any records that show the original
treatment from which this December 1987 treatment was a
follow-up, nor does the record contain the actual report of
the X-rays which presumably provided the basis for concluding
that degenerative joint disease was present in the hips. In
1989, however, the veteran was again seen for complaints of
left hip pain, for which he was provided medication. A
follow-up record, dated in January 1990, noted that the
veteran had been asymptomatic since using the medication,
but, in June 1990, he was given permanent limited duty
profile, whereby he was to run at his own pace, not to exceed
2 miles, in part, because of his left hip pain. The report
of the examination conducted in connection with the veteran's
service retirement, in 1993, contains a notation regarding
the 1987 finding of degenerative joint disease of both hips,
but does not include any current findings in that regard.
In connection with the veteran's current claim, he was
examined for VA purposes in September 1993. The report from
that examination reveals that the veteran complained that
cold weather would give his left hip "trouble." At that
time, however, the veteran had a normal range of motion of
his hips, although it was noted that he had trouble going
from a sitting to a lying position and from a lying to a
sitting position. X-rays of the left hip were interpreted as
"essentially normal," although the examination report
itself reflects that the veteran was diagnosed to have
"probably degenerative joint disease, left hip." Upon VA
examination in February 1994, there were no findings made
with respect to that specific joint, other than to note that
pain complaints in the area were attributed to radiculopathy
from the veteran's degenerative disc disease in his
lumbosacral spine.
Since the evidence in this case shows that the veteran was
diagnosed to have degenerative joint disease of the left hip
in service, he had sufficient in-service left hip complaints
to require a permanent profile limiting his running during
the last three years of his service, and there are post-
service records reflecting current discomfort in the left
hip, the Board finds that the veteran's claim for service
connection for a left hip disability is well grounded.
II. Increased Ratings
The law provides that claims for increased ratings are, in
general, well grounded within the meaning of 38 U.S.C.A.
§ 5107, since an assertion by a claimant that a condition has
worsened is sufficient to state a plausible, well-grounded
claim. See Jackson v. West, 12 Vet.App. 422, 428 (1999),
citing Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992).
The veteran has asserted that the service-connected
disabilities in issue are worse than currently evaluated by
the RO, and he has, therefore, stated well-grounded claims.
With that initial burden having been satisfied, VA has a duty
to assist the veteran in the development of facts pertaining
to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R.
§ 3.103(a) (1996). The Court has held that the duty to
assist includes obtaining available records which are
relevant to the claimant's appeal, and that this duty is
neither optional nor discretionary. Littke v. Derwinski, 1
Vet.App. 90 (1990). In this regard, the RO has obtained the
reports of VA examinations of the veteran, as well as
outpatient treatment records. With respect to the evaluation
of the veteran's fungus infection and arterial hypertension,
the veteran has not indicated that any further relevant
records are available. Therefore, we conclude that the duty
to assist with respect to these claims has been satisfied.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
38 C.F.R. § 4.1 requires that each disability be viewed in
relation to its history and that there be emphasis upon the
limitation of activity imposed by the disabling condition.
38 C.F.R. § 4.2 requires that medical reports be interpreted
in light of the entire recorded history, and that each
disability must be considered from the point of view of the
veteran's working or seeking work. 38 C.F.R. § 4.7 provides
that, where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation is to be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating is to be assigned. At the same time, in every
instance where the schedule does not provide a zero percent
evaluation for a diagnostic code, a zero percent evaluation
shall be assigned when the requirements for a compensable
evaluation are not met. 38 C.F.R. § 4.31.
The requirements for evaluation of the complete medical
history of the claimant's condition operate to protect
claimants against adverse decisions based upon a single,
incomplete, or inaccurate report and to enable VA to make a
more precise evaluation of the level of the disability and of
any changes in the condition. Schafrath v. Derwinski, 1
Vet.App. 589 (1991). Moreover, VA has a duty to acknowledge
and consider all regulations which are potentially applicable
through the assertions and issues raised in the record, and
to explain the reasons and bases for its conclusion.
A. Fungus Infection
A review of the record reflects that, while in service, the
veteran was treated at various times for crusty, scaly
lesions between his toes, and a foot fungus. His retirement
examination in June 1993, however, showed that the skin was
normal upon clinical evaluation.
In August 1993, the veteran submitted an application for VA
benefits, based in part upon his skin condition, and, in
September 1993, he underwent a VA medical examination. The
report from this examination noted that there were several
small crusted areas at the base of the veteran's toes and the
dorsum of his feet, bilaterally. There were, however, no
blisters noted at the time, and the diagnosis was fungus
infection, skin of both feet, around the toes.
In February 1994, the veteran underwent another VA
examination, at which time he indicated that his fungus
infection was "in good shape today." Physical inspection
revealed that no evidence of fungal infection was noted. The
diagnosis was history of fungus, toenails, bilateral.
In the March 1994 rating action currently on appeal, the
veteran was awarded service connection for his bilateral foot
fungus infection, and was assigned a noncompensable
evaluation. Thereafter, post-service outpatient treatment
records were associated with the claims file, dated in 1993
and 1994. They fail to show any treatment for the veteran's
skin condition.
The veteran's foot fungus has been evaluated under the
provisions of 38 C.F.R. § 4.118, Diagnostic Code 7805, for
eczema. Under this code, a noncompensable evaluation is
assigned with slight, if any, exfoliation, exudation, or
itching, if on a nonexposed surface or small area. A 10
percent evaluation is assigned with exfoliation, exudation,
or itching, if involving an exposed surface or extensive
area.
In this case, the veteran's skin condition affects a small
non-exposed area, his feet. While, in September 1993, small
crusted areas at the base of the veteran's toes and dorsum of
his feet were noted, the most current evidence shows that the
condition was asymptomatic. Clearly, this evidence does not
show more than slight, if any, exfoliation, exudation, or
itching, on a nonexposed surface or small area. In view of
this evidence, the criteria for a compensable evaluation for
the veteran's chronic fungus infection of both feet are not
met.
B. Arterial Hypertension
A review of the service medical records discloses occasions
when the veteran's blood pressure was noted to be elevated.
In particular, records dated in January 1993 reflect that it
was 140/90. When recorded February 1993, the veteran's blood
pressure levels were 140/92, 138/65, 161/93, and 152/85. In
March 1993 records, the veteran's blood pressure was recorded
at 134/90, and, when his blood pressure was recorded in April
1993, it was 155/94. In June 1993 treatment records, his
blood pressure was variously recorded at 138/84, 163/99,
166/99, 160/100, and 147/103. When examined in connection
with his retirement from active service, the veteran's blood
pressure was 157/108.
In connection with the veteran's current claim for benefits,
he underwent VA examination in September 1993. At that time,
his sitting blood pressure was 158/98, his recumbent blood
pressure was 136/88, and his standing blood pressure was
148/100. Sitting after exercise, his blood pressure was
166/100, and, two minutes after exercise, the recording was
148/104. The diagnosis was mild arterial hypertension.
He was examined again for VA purposes in February 1994. At
that time, his sitting blood pressure level was 136/96,
recumbent blood pressure level was 128/78, and blood pressure
while standing was 144/90. Thereafter, outpatient treatment
records, dated between December 1993 and April 1994, were
associated with the claims file. These show that, in
December 1993, the veteran's blood pressure was 169/110. In
March 1994, he was apparently provided medication to control
his blood pressure, and its level that month was recorded as
158/86 and 154/89. April 1994 records reflect that the
veteran's blood pressure level was 146/92 in mid month, and
146/80 later in the month.
Based upon the foregoing record, the veteran was awarded
service connection for arterial hypertension, and assigned a
noncompensable rating.
The veteran's arterial hypertension has been evaluated under
the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7101.
Under this code as in effect when the veteran initiated his
claim in 1993, a 10 percent rating was assigned when the
diastolic pressure was predominantly 100 or more. In
addition, when continuous medication was shown necessary for
control of hypertension with a history of diastolic blood
pressure predominantly 100 or more, a minimum rating of 10
percent was to be assigned. A 20 percent rating was assigned
when diastolic pressure was predominantly 110 or more with
definite symptoms.
During the pendency of the veteran's appeal, the criteria for
evaluating diseases of the arteries and veins were revised.
These changes became effective in January 1998. 62 Fed. Reg.
65,219 (December 11, 1997). Under these new criteria, a 10
percent rating under Diagnostic Code 7101 is assigned when
diastolic pressure is predominantly 100 or more; or systolic
pressure predominantly 160 or more, or as the minimum
evaluation for an individual with a history of diastolic
pressure predominantly 100 or more who requires continuous
medication for control. A 20 percent rating is assigned with
diastolic pressure predominantly 110 or more, or with
systolic pressure predominantly 200 or more.
The U.S. Court of Appeals for Veterans Claims has held that,
where laws or regulations change after a claim has been filed
or reopened and before the administrative or judicial process
has been concluded, the version most favorable to the
appellant will apply unless Congress provided otherwise or
has permitted the Secretary of Veterans Affairs to do
otherwise and the Secretary has done so. Karnas v.
Derwinski, 1 Vet.App. 308, 312-313 (1991). See also Baker v.
West, 11 Vet.App. 163, 168 (1998).
As indicated above, the rating schedule amendments were not
in effect at the time the RO issued its decision assigning a
noncompensable evaluation for the veteran's hypertension and,
therefore, would not have been applied by the RO in making
its determination. In view of that, the Board must consider
whether or not the veteran would be prejudiced if we were to
proceed with appellate consideration of the claim without
first giving the RO the opportunity to consider the new
regulations.
In this regard, the Board notes that the criteria for
assigning a 10 percent evaluation for hypertension in effect
prior to, and since January 1998, are nearly identical. In
order to establish entitlement to a compensable evaluation,
both versions require that diastolic pressure be
predominantly 100 or more, or that there be a history of
diastolic pressure predominantly 100 or more which requires
continuous medication for control. The only difference is
that, under the more recent version, a 10 percent rating may
also be assigned when systolic pressure is predominantly 160
or more.
Although it is the usual practice of the Board to remand a
claim to the RO for initial consideration of new regulations
promulgated during the pendency of an appeal, in this case,
since application of the only difference between these
regulations requires but a simple listing of the systolic
pressure levels to determine whether most are 160 or more, a
different result could not be obtained by having the RO
accomplish this in the first instance. Therefore, the
veteran would not be prejudiced by the Board proceeding to
the merits of the claim, and a remand would only result in
needless delay and impose further burdens on the RO, with no
benefit flowing to the veteran. The Court has held that such
remands are to be avoided. See Winters v. West, 12
Vet.App. 203 (1999) (en banc); Soyini v. Derwinski, 1
Vet.App. 540, 546 (1991); Sabonis v. Brown, 6 Vet.App. 426,
430 (1994).
As can be seen from the foregoing, of the 22 blood pressure
levels measured between January 1993 and December 1993 (prior
to the veteran beginning his use of medication), there were
only seven instances when the diastolic level was 100 or
more. (Records dated after the apparent initiation of the
use of medication show that the veteran's diastolic level was
always below 100.) Similarly, there were only six instances
when the systolic level was 160 or more. Since the evidence
does not show a history of diastolic pressure predominantly
100 or more, or a systolic pressure of predominantly 160 or
more, the criteria for a compensable evaluation for the
veteran's arterial hypertension are not met.
ORDER
To the extent the Board has determined that the veteran's
claim for service connection for a left knee disability is
well grounded, thereby giving rise to a duty to assist in its
development, the appeal is granted.
To the extent the Board has determined that the veteran's
claim for service connection for a left hip disability is
well grounded, thereby giving rise to a duty to assist in its
development, the appeal is granted.
Service connection for the residuals of a compression
fracture of the thoracic spine is denied.
Service connection for a lung disability is denied.
Service connection for the residuals of a left ankle stab
wound is denied.
Service connection for chronic ear aches is denied.
Service connection for the residuals of a sprain of the left
hand index finger is denied.
Service connection for a right hand disability is denied.
Service connection for the residuals of an insect bite is
denied.
Entitlement to an increased (compensable) rating for a
chronic fungus infection of both feet is denied.
Entitlement to an increased (compensable) rating for arterial
hypertension is denied.
REMAND
Having concluded that the veteran's claim for service
connection for a left knee disability is well grounded, the
Board is of the opinion that additional development is
necessary prior to entering a final determination regarding a
decision on the underlying merits of the claim. As indicated
above, while the evidence shows that the veteran's activities
in service were limited due, in part, to left knee
complaints, there were essentially no abnormal left knee
findings recorded following the 1993 VA examination which
would otherwise account for the diagnosis of left knee
chondromalacia at that time.
We observe that X-rays of the knee taken in September 1993
were specifically interpreted as normal. Then, when he was
examined only a few months later, it was noted that the
veteran had undergone surgery the month before, and he was
diagnosed to have post-traumatic arthritis of the knee. The
records of that surgery have not been associated with the
claims file, and, in view of the essentially normal findings
noted only a few months earlier, it is unclear whether the
trauma with which this arthritis is associated was a post-
service trauma, or was a trauma to which the knee was exposed
during the veteran's military career.
In order to base our decision on a complete record, it will
be necessary to return the case to the RO to attempt to
obtain the records of the veteran's post-service left knee
surgery, as well as to have the knee examined and a medical
opinion obtained regarding the nature and etiology of any
current left knee impairment.
Regarding disability affecting the veteran's left hip, there
is clearly a conflict in the medical evidence regarding the
presence and nature of such a disability. While service
medical records reflect a diagnosis of degenerative joint
disease, purportedly based on X-ray findings, and the
veteran's activities were limited during service based in
part on left hip pain, the post-service X-ray reports show
that this joint was considered essentially normal, and no
left hip impairment was noted when the veteran was last
examined for VA purposes in February 1994. In view of this,
a current examination of the veteran's hip, together with an
opinion regarding the etiology of any current impairment, is
necessary before a final decision on this matter can be made.
Regarding the veteran's claim for increased ratings for his
low back and right knee disabilities, since the veteran has
essentially contended that this impairments are worse that
currently evaluated by the RO, he has stated well-grounded
claims. See Proscelle, supra.
In this regard, however, it must be observed as an initial
matter that, owing to delays associated with the veteran's
requests for Travel Board hearings, the unfortunate damage to
the tape recording of the 1998 Board hearing that prevented a
transcription of it, and the veteran's move from the
geographic jurisdiction of the RO in which he initiated his
claim, the most recent medical records associated with the
claims file are now more than five years old. Similarly, the
most recent VA examination is nearly six years old. In view
of this stale evidence, an attempt to obtain more current
records concerning these disabilities and a more contemporary
examination of the veteran would be useful in adjudicating
his claims.
Furthermore, the VA examination reports of record all pre-
date the decision entered by the United States Court of
Appeals for Veterans Claims (previously known as the U.S.
Court of Veterans Appeals) in DeLuca v. Brown, 8 Vet.App. 202
(1995). In DeLuca, the Court stressed that, in evaluating
disability in a joint or joints, VA has a duty to determine
whether the joint in question exhibits weakened movement,
excess fatigability, or incoordination, and whether pain
could significantly limit functional ability during flare-ups
or when the joint is used repeatedly over a period of time.
The Court indicated that these determinations should be made
by an examiner and should be portrayed by the examiner in
terms of the additional loss in range of motion due to these
factors (i.e., in addition to any actual loss in range of
motion noted upon clinical evaluation). See Deluca, supra,
at 206.
In another decision, the Court has reemphasized its DeLuca
holding:
Under 38 C.F.R. § 4.40 (1996), the Board is
required to consider the impact of pain in making
its rating determination. Schafrath v. Derwinski,
1 Vet.App. 589, 593 (1991). The Board is required
to provide a statement of its reasons and bases
with respect to that aspect of the determination
as well. Ibid (citing Gilbert, 1 Vet.App. at 58).
Although section 4.40 does not require a separate
rating for pain, it does promulgate guidance for
determining ratings under other diagnostic codes
assessing musculoskeletal function. See generally
38 C.F.R. § 4.71(a) (1996). The fact that a
specific rating for pain is not required by
section 4.40 does not relieve the BVA from its
obligation to provide a statement of reasons or
bases pertaining to that regulation. See DeLuca
v. Brown, 8 Vet.App. 202, 207 (1995).
Spurgeon v. Brown, 10 Vet.App. 194, 196 (1997).
Since the examination reports currently of record do not
address the considerations discussed by the Court in the
DeLuca decision, it will be necessary to have the veteran
examined under the guidelines set out in that decision,
before the Board enters its determination on the matter.
For the reasons set forth above, this case is being remanded
to the RO for the following action:
1. The RO should ask the veteran to identify
those locations at which he has received any
treatment for his low back, his knees, and his
left hip since his discharge from service in 1993.
Upon receipt of the veteran's reply, together with
any appropriate authorization, the RO should
attempt to obtain, and associate with the claims
file, copies of any records the veteran has
identified, which are not currently part of the
record on appeal. In particular, any records
related to surgery apparently performed on the
veteran's left knee in January 1994 should also be
obtained.
2. The veteran should then be scheduled for an
examination to evaluate the nature and extent of
his low back disability, his left hip disability,
and any disability affecting his knees. All
indicated tests, and any consultations deemed
necessary, should be accomplished. In addition,
all examination reports should fully set forth the
current complaints, pertinent clinical findings,
and diagnoses affecting each of the identified
joints. With respect to the veteran's low back
and right knee, the extent of any functional loss
present in those areas due to weakened movement,
excess fatigability, incoordination, or pain on
use should be noted. The examiner should also
state whether any pain claimed by the veteran is
supported by adequate pathology and is evidenced
by his visible behavior. Any additional
impairment on use should be described in terms of
the degree of additional range-of-motion loss, as
per the DeLuca precedent, supra, and specific
findings should be made regarding range of motion
of the lumbar spine and right knee, to include the
extent to which that motion deviates from normal.
The level of pain on motion should also be
described. All opinions expressed should be
supported by reference to pertinent evidence.
With regard to the veteran's left knee and left
hip, the examiner should identify each left knee
and left hip disability currently present and then
render an opinion as to whether it is at least as
likely as not that any such left hip and left knee
disability originated during the veteran's
service. A complete rationale for any opinion
expressed, with reference to supporting records,
should be provided. Before evaluating the
veteran, the examiner should review the claims
folder, and a notation to the effect that this
review of the record was accomplished should be
included as part of any examination report.
3. Upon completion of the above, the RO should
review the evidence, and ensure that all of the
foregoing development actions have been conducted
and completed in full. If any development is
incomplete (for example, if any requested opinions
are not provided), appropriate corrective action
should be taken.
4. Upon completion of the foregoing development
of the record requested by the Board, and any
other development as may be deemed appropriate by
the RO, the RO should enter its determination
regarding the veteran's claim for increased
ratings for his low back and right knee
disabilities, and for entitlement to service
connection for a left knee and left hip
disability. If the decision results in an
increased rating, and/or a grant of service
connection, the veteran should be asked whether
that satisfies his appeal. If he replies in the
negative, or not at all, or if his claims continue
to be denied, he should be furnished a
supplemental statement of the case concerning all
evidence added to the record since the last
supplemental statement of the case in 1995, and
which includes and addresses the provisions of
38 C.F.R. §§ 4.40, 4.45 as may be appropriate.
The veteran should then be given an opportunity to
respond, and the case returned to the Board for
further appellate consideration, if otherwise in
order.
Although no further action is required of the veteran until
he receives further notice, he has the right to submit
additional evidence and argument on the matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet.App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ANDREW J. MULLEN
Member, Board of Veterans' Appeals